I Would’ve Offered Light Duty, But I Fired Him . . .

As a result of the 2009 decision by the Virginia Court of Appeals in Shenandoah Motors, Inc. v. Smith, 53 Va. App. 375, 672 S.E.2d 127 (2009), the framework for challenging claims to post-termination partial disability benefits changed significantly. It used to be the case that in order to bar a claim to post-termination partial disability benefits, the employer was required to show the following:

(1) that the employer made a bona fide job offer suitable to the employee’s capacity,

(2) that the employer procured a job offer for the employee, and

(3) that the employee unjustifiably refused to accept the job offer.

The court’s ruling in Shenandoah Motors amends the first requirement to allow an employer to effectively challenge a claim to post-termination partial disability benefits by showing that the employer would havemade selective employment available during the post-termination period of the employee’s partial disability but for the employee’s termination for cause from full-duty employment after suffering a compensable injury.

In other words, an employer may now bar a claim to post-termination partial disability benefits by establishing constructive refusal of selective employment by the employee—i.e., that the employee’s post-injury amounted to refusal of an offer of selective employment, even in the absence of an actual bona fide offer of selective employment by the employer.

An employer may establish constructive refusal of selective employment by showing that it would have offered the employee suitable selective employment but for the employee’s termination for cause. InShenandoah Motors, uncontradicted testimony stating that an offer of light-duty employment would have been made had the employee not been previously terminated for cause while working full-duty was sufficient for showing constructive refusal of selective employment. Still, the court noted that when challenging a claim to post-termination partial disability benefits based on an employee’s constructive refusal of selective employment, the employer must persuade the Virginia Workers’ Compensation Commission with a preponderance of the evidence that the employee’s actions amounted to constructive refusal of selective employment, even though the employer never made an actual bona fide offer of selective employment.

Employers may preemptively bolster their abilities to challenge claims to post-termination partial disability benefits based on constructive refusal of selective employment by notifying all employees of the availability of light-duty employment in the event of an injury, and of the requirements and protocol for requesting such employment. Employers might additionally remind all injured employees of the availability of light-duty employment. Such policies will likely strengthen employers’ claims, when challenging claims to post-termination partial disability benefits based on an employee’s constructive refusal of selective employment, that light-duty employment would have been made available but for the employee’s termination for cause.

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